CAO 00-19
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TO:
Jorge M. Gonzalez
City Manager
DATE: November 16. 2000
FROM:
Murray H. Dubbin
Ci.ty Attorney
As per your request, attached is the Legal Opinion you requested regarding the above-
referenced subject.
Attachment
c: Christina M. Cuervo
Joe Dami--n
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CITY OFl\fiAMI BEACH
CITY ATTORNEY'S OFFICE
TO:
Jorge M. Gonzalez . J. ~ IIV
City Manager ~
Murray H. DubbiD II . I Jb1
City Attorney I\J}Y I
CAO- NO. 00-19
FROM:
DATE: November 16, 2000
SUBJECT: Beachfront Concessions
Your request for legal opinion dated October 6, 2000 numbered C.M.O. 3-10100 (redesignated for
this opinion CAO #00-19) asks essentially two questions:
1) What is the legal and proper methodology by which seaward extensions of northern
and southern Property Lines are determined, particularly in reference to the Sasson
Hotel at 2201 Collins Avenue, the Shore Club Hotel at 1999 Collins Avenue and the
public right of way from the street end at 20th Street?
2) Is a concession operation precluded on beachfront if the upland property is vacant
and/or not in operational use? Reworded this question could properly read: Does the
owner of upland property have the right to approve or disapprove a concession
agreement for operation behind said property, if the property is vacant or otherwise
non operational (as a business - hotel- apartment, etc.)?
This opinion embodies the oral opinion I provided you some weeks ago at our meeting with the
Administrative Staff. The Department of Environmental Protection (Trustees of the Internal
Improvement Trust Fund of the State of Florida) is fee simple title holder to beachfront land lying
between the established erosion control line and the mean high water line (Section 161.141 through
161.211, Florida Statutes).
The City entered into a Management Agreement with the Trustees on February 3, 1982, which
Agreement was to run for a period of25 years (TIITF No. 3595, City No. 750-006). The City is
requested to submit a Management Plan every five years. The latest adopted plan was September 24,
1997, Resolution No. 97-22533. Section II of the Plan establishes the rule governing the Grant of
Concessions and provides in part:
'''The Concessionaire operating on the Public Beach behind the upland owners
property will be granted an occupational license only after they receive from
the upland owner and the City of Miami Beach in writing, permission to offer
said services to the public,"
Accordingly, the answer to question 2 is simple and logical: The Upland Owner has the right to
permit (or not permit) a concessionaire "behind the upland owner's property." There is no condition
requiring active use of the upland property. Thus, the vacancy or non operation of the property has
no bearing on the owner's right of approva1.
The answer to question 1 is not as clear cut and is heavily dependent upon the factual situation. The
ultimate question is who is the upland owner of a strip of beach front, or stated another way "how
do you determine which beachfront property is "behind" a parcel of upland property?
On a beachfront such as exists in most of the beachfront south of 20th Street, determination of the
upland owner is simple. The mean high water line, erosion control line and street corridor are
relatively paralle1. The land has been subdivided in blocks and lots which are substantially
perpendicular to the street and the designated lines. Accordingly, the proper and simple way to
determine the beachfront behind the upland area has been to simply extend the north and south lot
boundary lines Eastward to the ocean. Such line extensions have been substantially parallel to each
other and the upland owner's beach front rights are easily demarcated.
The problem arises when there is a curvature in the shore line/mean high water line/erosion control
line/ street line. When one or more of these conditions exist the subdivided North South property
lines of the subject lots, when extended, are no longer parallel to their neighbors, but, in fact, intrude
upon and overlap neighboring extensions so that there may be no upland owner who can claim sole
domination of the beachfront behind his property. Nor, in fact, can we easily define which land is
behind his property.
The landmark case ofJobnson v. McCowen (348 So. 2d 357 1st DCA 7-11-77) addressed a similar
problem in Santa Rosa County involving a dispute between neighboring upland owners over
Riparian or Littoral Rights to develop adjacent submerged land where the shoreline had changed
by accretion and became uneven. The Court stated:
[3-6J The rule ofIaw applicable to adjacent landowners' rights in littoral properties is that
no rule can be laid down as to every situation, since their respective rights must depend in
every instance upon the shape of the upland, the arm of the sea, and their relative position
to each other. The aim of all rules as applied to the rights of adjoining littoral proprietors on
an irregular shore is to give each, as far as may be, a fair and reasonable opportunity of
access to the channel. I The general rule by which alluvion is apportioned between different
littoral owners is, when practicable, allot each proprietor a frontage of the same width on the
new shore as on the old shore. When the general course of the shore curves or bends, two
objects are to be kept in view; namely, to give each proprietor a fair share of the land and to
secure to him convenient access to the water from all parts of his land by giving him a share
IRochesterv. Barney, I 17 Conn. 462, 469, l69 A 45 (l933).
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of the outward line proportioned to a share of the line of the original shore owned by him.
The Court then cited Hayes v. Bowman, 91 So. 2d 795 (Fla 1957) which stated in part:
"We therefore prescribe the rule that in any given case the riparian rights of an upland owner
must be preserved over an area 'as near as practicable' in the direction of the Channel so as
to distribute equitably the submerged lands between the upland and the Channel. In making
such 'equitable distribution' the Court necessarily must give due consideration to the law of
the upland shoreline, the direction of the Channel and the correlative rights of adjoining
upland owners."
Applying the case law to the present situation, it is our opinion that in apportioning littoral rights to
the neighboring upland owners, the City Administration should seek to give each neighbor as far as
possible a fair and reasonable opportunity of access to the water which would include the beachfront
between the upland and the water. The main consideration would be to apportion the share in
proportion to the share he would have had based upon his property frontage.
MHD:lm
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